Delhi District Court
In The Matters Of vs Government Of Nct Of Delhi 2 on 17 February, 2007
IN THE COURT OF SH. DINESH DAYAL
PRESIDING OFFICER INDUSTRIAL TRIBUNAL II,
KARKARDOOMA COURTS, DELHI
ID No. 303/2001
ID No. 42/2003 AND
ID No. 43/2003
IN THE MATTERS OF
M/S Bharat Litho,
235/1-2, Nangli, Sakrawati,
Najafgarh Road,
New Delhi - 110 043
...Management
Versus
Its workmen
As represented by
Engineering Workers Lal Jhanda Union]
I-441, Karampura
New Delhi - 110 015
...Workman
A W A R D
The Management of M/S Bharat Litho was
carrying on its business at 235/1-2 Nangli,
Najafgarh Road, New Delhi. On 15.8.1997 there was
an incident of fire which completely destroyed the
first & second floor of the factory. A section of
the factory near Cabinet Department was situated on
the first & second floor of the factory. The
Management declared a lay-off of the workers
working in the Cabinet Department w.e.f. 26.8.1997
.
2. The lay-off continued for a considerable period of time and the Secretary (Labour) Government of National Capital Territory of Delhi made four industrial references relating to different period of lay-off. The first industrial reference was made vide Notification No. F.24 (5265/99/Lab/3747-51 dated 01.2.2000 relating to the period 26.8.1997 to 28.2.1998. This reference was sent to the Court of Shri NK Gupta - Learned Presiding Officer Industrial Tribunal - I and was answered by an Award dated 15.11.2003.
3. Industrial Reference in ID No. 303/2001 was made vide Notification No. F.24 (1549)/2001/Lab/18263-67 dated 09.8.2001 for adjudication to this Industrial Tribunal with the following terms of reference:-
Reference Whether the workmen S/Shri Jogender Pal Singh , Umesh Prasad, Hargovind Singh , Brij Bihari, Naveen Chand Joshi, Shyam Singh, Arvind Singh , Mohd. Islam , Virender Kumar Jha, Dinesh Kumar Singh and Sukh Sagar are entitled for full wages for the lay-off period i.e. w.e.f. 29.2.1998 to 30.4.2000 and if so, what directions are necessary in this respect?
4. Industrial Reference in ID No. 42/2003 was made vide Notification No. F.24 (2603)/2002/Lab/24829-33 dated 24.1.2003 for adjudication to this Industrial Tribunal with the following terms of reference:-
Reference Whether the workmen Shri Jogender Pal Singh and ten others, whose names are given in Annexure A are entitled to full wages for the lay-off period i.e. w.e.f. 01.2.2001 to 31.8.2001 and if so, what directions are necessary in this respect?
5. Industrial Reference in ID No. 43/2003 was made vide Notification No. F.24 (2602)/2002/Lab/25045-49 dated 28.1.2003 for adjudication to this Industrial Tribunal with the following terms of reference:-
Reference Whether the workmen whose names are given in Annexure 'A' are entitled to full wages for the period of lay-off i.e. w.e.f. 01.5.2000 to 31.1.2001 and if so, what directions are necessary in this respect?
6. The case of the workmen as stated in the statement of claim that the lay-off with respect to the persons named in the reference for the parties mentioned in the three references was illegal and justified because the workmen concerned were the active members of the Union and they were pressurize to leave the job . The Management declared the lay-off in contravention of Chapter V B of the Industrial Disputes Act which is applicable to the Management as the Management had more than 100 employees engaged at the premises of the Management itself at 235/1-2, Nangli Sakrawati, Najafgarh Road, Delhi. The declaring the lay-off required that the Management should obtain permission from the appropriate Government under Section 25M(1) and Section 25M(8) of the Industrial Disputes Act. The workmen have claimed that they are entitled to full wages for the period of lay- off.
7. It is alleged by the workmen that the family members of the Management are engaged in the same business at Mayapuri, Najafgarh & Gurgaon in different names. All the businesses of the Management form one Establishment as Shri Jai Chand Khanna & Shri Kishan Lal Khanna are looking after the different companies which have their head office at the residence of the aforesaid persons at B-21, Vishal Enclave, New Delhi. The Management is now getting the work done, which has been done by the workmen , from their other concerns. No notice of lay-off was given . Lay-off for more than 45 days can not be declared by the Management in view of the provisions of Section 25C of the Industrial Disputes Act.
8. The Management has contested the claims filed by the workmen on the ground that the cause of the workmen has not been duly espoused. The Union which has raised this dispute has no locus standi to represent the workmen . Substantive number of workmen have not espoused the cause of the workmen .
9. It is further alleged by the Management that provisions of Chapter V B of the Industrial Disputes Act are not applicable to the Management as the Management has less than 100 workmen working with them . The Management is covered by the provisions of Chapter VA . The lay-off was declared as a consequence of the incident of fire which took place on 15.8.1997 . The Management has alleged that it has no relation that the other concerns mentioned by the workmen . The Management is not getting any work done from those other Establishments.
10. On these allegations of the parties, following Issues were framed in all the three ID cases :
ISSUES :
(I) Whether the cause of the workmen
has been duly espoused?
(II) Whether the workmen are entitled for full wages for the lay-off period? (III) As per terms of reference.
11. The workmen have examined Shri Brij Bihari as WW1 and Shri Virender Jha as WW2, while the Management has examined Shri Sri Bhagwan who is Assistant Administrative Officer for the Management, in all the three ID cases.
12. I have heard the learned Authorised Representatives for the parties and have carefully gone through the file. My findings on the Issues are as under :
ISSUE No. 1 : 13. The present claimants in the three
references have been signed by 11 workmen . Shri Sri Bhagwan/MW1 has admitted in his cross- examination that the claimants had signed the statement of claim before the Conciliation Officer. It is the case of the Management that less than 100 persons were working in the establishment of the Management. Therefore, it is apparent that substantive number of workmen of the Management have signed the claim petition. The workmen have, therefore, espoused each others cause and I find that the claim has been duly espoused.
ISSUE No. 2 :
14. The workmen have submitted written arguments and have alleged that lay-off declared by the Management was illegal since they did not obtain any permission from the appropriate Government as required under Chapter V-B of the Industrial Disputes Act.
15. Learned AR for the Management has argued that the terms of reference do not require this Tribunal to go into legality of the lay-off. A perusal of the terms of reference would show that this Tribunal has only been referred the dispute relating to the quantum of payment to which the workmen are entitled for the period of lay-off. The language of the reference suggest that the fact that lay-off was validly & legally declared has been accepted by the Government and only the amount to which the workmen are entitled has been referred to this Tribunal. It is now settled law that the Tribunal has to confine the adjudication within the terms of reference. The Tribunal deprive jurisdiction from the terms of reference and the same can not be enlarged by the Tribunal by going into the matters which have not been referred.
16. In the case of Modern Food Industries (India) Ltd. Vs. Government of NCT of Delhi 2000 (85) FLR 493 (Delhi) it has been held that whether the dispute referred require the Tribunal to go into the question as to whether punishment of down grading was disproportionate to the charge or not. The Tribunal was not required to go into the question as to whether the punishment was legal or valid.
17. Learned AR for the workmen has argued that under Chapter V-A of the Industrial Disputes Act, the Management can not continue the lay-off for more than six months. Reference has been made to Section 25C of the Industrial Disputes Act and it has been argued that under the Industrial Disputes Act the Management can resort to retrenchment after 45 days but can not continue lay-off beyond 45 days.
18. Section 25C of the Industrial Disputes Act provides as under :
Right of workmen laid-off for compensation --- ...............................................
Provided that if during any period of twelve months, a workman is so laid-off for more than forty-five days, no such compensation shall be payable in respect of any period of the lay-off after the expiry of the first forty-five days, if there is an agreement to that effect between the workman and the employer.
Provided further that it shall be lawful for the employer in any case falling with the foregoing proviso to retrench the workman in accordance with the provisions contained in section 25F at any time after the expiry of the first forty-five days of the lay-off and when he does so, any compensation paid to the workman for having been laid-off during the preceding twelve months may be set off against the compensation payable for retrenchment.
Explanation ----
.............................................
19. A reading of these provisions show that if during any period of 12 months, a workman is laid- off for more than 45 days no compensation shall be payable in respect of any period of lay-off after the expiry of firsts 45 days, if there is an agreement to that effect between the workman and the employer.
20. First proviso, therefore, provides that in case of the agreement between the workman and the employer, the lay-off can continue even beyond 45 days without payment of any compensation to the workman . It does not in any way built the lay-off beyond 45 days.
21. The second proviso enables the Management to retrench the workman in accordance with the provisions of Section 25F of the Industrial Disputes Act at any time after the expiry of first 45 days of the lay-off. This proviso also does not prohibits the continuance of lay-off nor does it make the retrenchment mandatory.
22. Arguments have been raised on behalf of the workmen that more than 100 employees are working with the Management and therefore the provisions of Chapter VB of the Industrial Disputes Act are applicable. The only evidence led by the workmen in this respect is the statement of the workmen themselves.
23. In the case of Maharastra General Kamgar Union Vs. Indian Gum Industrial Ltd. And others reported as 2000 (86) FLR 533, it was held that "To enforce the right under Chapter VB of the Industrial Disputes Act, the initial burden to prove the foundational facts lies on the Union or the workmen challenging the action of the employer as violative of any of the provisions under the said Chapter V-B of the Act. Merely saying that the entire record is with the employer does not satisfy the elementary principles of pleadings. A suitable application can always be made to the Court for a direction to the employer to produce such record and to take inspection of such documents to prove the fact. It is the primary duty of the Union to bring on record the relevant facts and material to succeed on the law point."
24. In the case between RM Yellatti and Assistant Executive Engineer reported as 2006 (108) FLR 213 (SC), it was held that mere affidavits or self serving statements by claimant/workman will not suffice in discharge of the burden .
25. In the instant case the workmen have not led any evidence beyond their own statements to prove that more than 100 workmen were employed with the Management. No effort was made to summon the documents from the Management to prove the number of workmen employed with the Management.
26. The workmen resorted to the argument that the presence of the some family of the Management were carrying on business under different names where similar type of products were being manufactured and therefore, all these entities should be clubbed together and the total number of workmen in all these entities should be taken into consideration . This argument was rejected by this Tribunal vide order dated 25.2.2005 . The argument was rejected on the ground that the workmen themselves have alleged that there were 127 workmen working with the Management of M/S Bharat Litho itself. Even otherwise I find that there is no relevance in this argument in view of the fact that the legality of lay-off has not been referred to this Tribunal.
27. The Management has also proved on record Ex.M1, M2 & M3 to show that three workmen namely Arvind Singh , Har Govind Singh and Shyam Singh have already settled their dispute with the Management and have taken full & final settlement. I, therefore, hold that the workmen have not been able to show that they are entitled to full wages for the respect lay-off periods mentioned in the three references.
ISSUE No. 3 :
28. In view of my findings on Issue No. 2 above, it is held that the workmen S/Shri Jogender Pal Singh , Umesh Prasad, Hargovind Singh, Brij Bihari, Naveen Chand Joshi, Shyam Singh, Arvind Singh, Mohd. Islam, Virender Kumar Jha , Dinesh Kumar Singh and Sukh Sagar are not entitled for full wages for the respective lay-off periods as mentioned in the references in the above three cases. Reference is answered.
Let a copy of this Award be placed in all three ID cases and let six copies of this award be sent to the appropriate Government ie. Secretary (Labour), Government of National Capital Territory of Delhi for necessary action at their end.
File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN COURT ON 17th Day of February 2007 (DINESH DAYAL), PRESIDING OFFICER INDUSTRIAL TRIBUNAL II, KARKARDOOMA COURTS, DELHI